Her Majesty the Queen - v. -, 2017 SKPC 33

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 033 Date: April 6, 2017 Information: 33680141 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jeremy John Flegel Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Mr. Merv Nidesh, Q.C.

For the Accused JUDGMENT KOVATCH , J [ 1 ] The accused Jeremy John Flegel, is charged that on May 8, 2014, he drove a motor vehicle while his blood alcohol content exceeded .08 percent and he is charged with impaired driving. [ 2 ] Counsel for the accused served and filed a notice of Charter argument. When the trial began, the Crown immediately entered a Charter voir dire and the accused argued that significant evidence from the Crown’s case, including the Certificate of Analyses, should be excluded pursuant to

section 24 of the Charter. I rejected that argument, and admitted all of the evidence.

[3] When the trial resumed, defence counsel advised there would be no defence evidence. The matter proceeded directly toargument. Defence counsel advanced only one argument. He pointed out that the investigating officer received the Certificate ofAnalyses from the qualified technician. The officer testified that he then served the Certificate of Analyses and Notice of Intention toProduce upon the accused. During cross-examination, Mr. Nidesh asked the officer if he compared the original and copy, and the officersaid he could not recall. On the basis of this response, Mr.

Nidesh argues that section 258(7) of the Criminal Code has not beencomplied with, and the charge must be dismissed. [4] In my view, this argument is without merit. Firstly, there is significant Saskatchewan authority to the effect that a side byside comparison of the original and the copy is not necessary. See for example R v Demers, 2007 SKQB 348; R v Longley, (SKQB); R v Dreaver, 2015 SKQB 93; R v Gulka, 2013 SKQB 363; R v Daoust, 2015 SPC 144. All of these cases hold that aside by side comparison is not necessary.

As a result, I am not prepared to dismiss this charge because the officer could not recall if hedid a side by side comparison. [5] Secondly, section 258(7) reads as follows: No certificate shall be received in evidence pursuant to paragraph 1(e), (f), (g), (

h) or (

i) unless the party intending to produce it has,before the trial, given to the other party reasonable notice of his intention and a copy of the certificate. In the Affidavit of Service which is filed as an exhibit in this matter, the officer clearly deposed that he served these documents on theaccused. In other words, he deposed that he gave the accused notice that the Crown intended to rely on the Certificate and gave him acopy of the Certificate, just as required by the section. In argument, Mr. Nidesh stated that the Crown cannot rely upon this affidavitwhen the officer has contradicted it in any fashion.

He cited no case law as authority for that proposition. With the greatest of respect,the officer has not contradicted or thrown into doubt the affidavit in any fashion. He honestly stated that he could not recall if he did aside by side comparison. [6] Moreover, to accept Mr. Nidesh’s argument and disregard the Affidavit of Service, would undermine the very purpose forthe Affidavit of Service in the first place. Why do those involved in the legal profession create routine affidavits such as Affidavits ofService and Affidavits of Execution?

It seems to me they do so to create sworn evidence of a very important but routine act so that theaffidavit can be relied upon at a later date. They do so because the act is so routine and so commonly done, that the deponent may haveno recollection of the original act or swearing the affidavit. In other words, they swear an affidavit to meet the very situation that hasarisen here. That is, where the officer could not recall the exact events leading to the service.

If the affidavit could be simplydisregarded because the officer did not recall, there would be no purpose in creating the affidavit in the first place. [7] I conclude that there is no basis for me to disregard the Affidavit of Service. In the Affidavit of Service, the officer hasclearly deposed that he has served the copy of the Certificate of Analyses and Notice of Intention upon the accused. This is all that wasrequired by section 258(7). That subsection has been complied with. The Certificate and Notice of Intention are properly received inevidence.

The Certificate of Analyses establishes that the accused’s blood alcohol levels were 100 milligrams of alcohol in 100millilitres of blood. I find the accused guilty of the charge of driving while his blood alcohol content exceeded .08 percent. I impose ajudicial stay with respect to the charge of impaired driving. Dated at the City of Moose Jaw, the Province of Saskatchewan, this 6th day of April 2017. ________________________ Kovatch, J